An expression from Aristotle translated into Latin: nemo censetur ignorare legem (nobody is thought to be ignorant of the law) or ignorantia iuris nocet (not knowing the law is harmful).

Ignorantia juris non excusat or ignorantia legis neminem excusat (Latin for “ignorance of the law excuses not” and “ignorance of law excuses no one” respectively) is a legal principle holding that a person who is unaware of a law may not escape liability for violating that law merely because one was unaware of its content.

State of Gujarat – Std 10 not mandatory for NEET Admission

In a very positive development for the Students aspiring to take admission in Professional Medical Courses in the State of Gujarat, who had challenged the legality and validity of the Rule 4(3) of Gujarat Professional Medical Educational Courses (Regulation of Admission in Undergraduate Courses ) Rules, 2017, the Special Civil Applications were filed before the Hon’ble High Court of Gujarat, the Government of Gujarat has amended the rules and exempted the present academic year 2019-20, from the applicability of the said rule.

The rules reads as below:

  1. Eligibility for Admission

A candidate who desires admission shall  

(1) **

(2)**

(3) have passed the 10th and 12th qualifying examination with “B-Group” and “AB-group” from

(i)     the Gujarat Board,

(ii) the Central Board of Secondary Education provided that the school in which the candidate has studied, is located in the State of Gujarat

(iii) the Council of Indian School Certificate Examinations Board, New Delhi provided that the school in which the candidate has studied, is located in the State of Gujarat.

The bone of Contention was the Rule 4(3)(ii), whereby the rules made it mandatory for the students, aspiring to get admissions to Professional Medical Educational Courses in the colleges situated in State of Gujarat, to have passed 10th Standard examination either from Schools affiliated to Gujarat Board or from Schools situated in State of Gujarat and affiliated to the Central Board of Secondary Education. 

However, the Government of Gujarat had to reconsider its stand after the petitions were filed in the High Court of Gujarat. The new Rules (amended), provides the exemption for the students of this Academic Year 2019-20;

Indian Laws Relating To Maintenance

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Definition

The word maintenance is of wide connotation. The most precise definition of it has been given under Section 3 (b) of the Hindu Adoption & Maintenance Act, 1956, which reads as under:-
“in all cases, provisions for food, clothing, residence, education and medical attendance and treatment; in the case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.”

There are four different types of provisions regarding maintenance:-

(A) Provisions under Code of Criminal Procedure, 1973.
(B) Provisions under the Hindu Marriage Act, 1955.
(C) Provisions under the Hindu Adoptions and Maintenance Act, 1956.
(D) Provisions under the Protection of Women from the Domestic Violence Act.

The provisions of maintenance in the Cr.P.C. and the Hindu Adoption and Maintenance Act are independent reliefs. Although, the right to claim maintenance under the Hindu Marriage Act is an independent right and it is not being controlled by the Hindu Adoption and Maintenance Act, but the jurisdiction of the Court cannot be ousted on the plea that the applicant under the Hindu Marriage Act is already getting maintenance under the Hindu Adoption and Maintenance Act, but while fixing the quantum of maintenance that may be taken into consideration. Under the Hindu Marriage Act, either spouse can seek maintenance, under the Code of Criminal Procedure and Hindu Adoption and Maintenance Act, only the wife can claim maintenance.

(A) Provisions under the Hindu Marriage Act, 1955

Under the Hindu Marriage Act, an order for maintenance may be made by the Court.
Firstly; for maintenance pendente lite (interim or temporary) and expenses of the proceedings under Section 24, and
Secondly; for permanent maintenance and alimony under Section 25.

(B) Provisions under the Code of Criminal Procedure, 1973:

Section 125 of the Code provides that ” if any person, having sufficient means, neglects or refuses to maintain….his wife, unable to maintain herself…a Magistrate of the first class, may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife.

Provided that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order notwithstanding such offer, if he is satisfied that there is just ground for so doing.

Explanation – “wife” includes a woman who has been divorced by, or has obtained divorce from her husband and has not remarried.

If a husband has contracted marriage with another women or keeps a mistress, it shall be considered to be just ground for his wife’s refusal to live with him. No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, if they are living separately by mutual consent.

The provision is secular in nature and covers the right of a wife professing Islam or any other religion. (Shamima Farooqui Vs Shahid Khan decided on 06.04.2015 by Hon’ble Apex Court and Shamim Bano Vs Asraf Khan decided on 16.04.2014 by Hon’ble Apex Court).

The sweep of provision has been extended by the Hon’ble Apex Court by observing that strict proof of marriage should not be insisted as pre-condition for maintenance under Section 125 Cr.P.C. It includes those cases where a man arid woman have been living together as husband and wife for long period of time (Chanmuniya Vs Virender Kumar Singh Kushwaha JT 2010 (11) SC 132).

The second wife or a woman living as ‘wife’ is not entitled to get maintenance. If the marriage is void or annulled under Section 12 of the Hindu Marriage Act, a wife is not entitled to maintenance. (Krishan Copal Vs Usha Rani, 1982 Cr.L.J. 901 Del.).

Recently, the Hon’ble Supreme Court again held that the expression ‘wife’ as per Section 125 Cr.P.C. refers only the legally married wife. The court observed that “there may be substance in the the appellant wife that the law operates harshly against the woman, who plea of unwittingly gets into a relationship with a married man and Section 125 of the Code does not give protection to such woman. This may be an inadequacy in law, which only the legislature can undo.” The Court, however, held that the illegitimate children from the second wife are entitled to such maintenance.

C) Provisions under the Hindu Adoptions and Maintenance Act, 1956:

The Hindu husband is under a duty to maintain his wife during life time. Maintenance is a personal/legal obligation. It is an incident of the status or estate or matrimony. The meaning of the term ‘maintenance’ is given in Section 3 (b) or the Act “maintenance” includes (i) in all cases,

provision for food, clothing, residing, education, and medical treatment and (ii) in case of an unmarried daughter, also the reasonable expenses of an incident to her marriage.

Section 18: Maintenance of wife

(1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to he maintained by her husband during her life time.

Section 18 (1) is applicable when the wife lives with her husband. A wife who has ceased to be Hindu cannot claim maintenance. However, an unchaste wife who lives with her husband can claim maintenance.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance.
a) If he is guilty of desertion or of willfully neglecting her.
b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband.
c) If he is suffering from a virulent form of leprosy.
d) If he has any other wife living.
e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere.
f) If he has ceased to be a Hindu by conversion to another religion.
g) If there is any other cause justifying living separately.

(3) (Forfeiture of the claim of maintenance). A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Maintenance of widowed daughter-in-law

Section 19 of the Hindu Adoption and Maintenance Act provides that after the death of her husband, a Hindu wife is entitled to be maintained by her father-in-law, if she has no means of her own earnings or other property or estate of her husband/ father/ mother or from her son or daughter or his/her estate. However, this right cannot be enforced if the father-in-law does not have the means to do so from any coparcenary property in his possession out of which the daughter-in-law has not obtained any share. Further, his obligation ceases when the daughter-in-law remarries.

Amount of Maintenance: Court’s Discretion

Under Section 23, it is in the discretion of the Court to determine whether any, and if so what, maintenance should be awarded under the Act, in respect of the wife, children, aged or infirm parents, the Court will have regard to:
(a) the position and status of the parties;
(b) the reasonable wants of the claimant;
(c) if the claimant is living separately, whether he (or she) is justified in doing so;
(d) the value of the claimant’s property and any income derived from such property, or from the claimant’s own earning or from any other source; and
(e) the number of persons entitled to maintenance under the Act

The amount of maintenance, whether fixed by a Court’s decree or by agreement, may be altered subsequently if there is a material change in the circumstance (Section 25). A person cannot claim maintenance under the Act if he or she has ceased to have a Hindu by conversion to another religion (Section 24).

(D) The Protection of Woman From Domestic Violence Act, 2005:

This enactment provides for a specific and effective remedy to an aggrieved person, who is victim of domestic violence while living in the shared household along with the respondent including husband. The scope of legislation is wide as it covers not only the wife but every women who has been living in the relationship in the nature of marriage. Maintenance is to be granted under Section 20 of the Act. While disposing of application under Section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person as a result of domestic violence. The basic condition for claiming right under the Act is causing violence.

Distinction between Section 18 of the Hindu Adoption and Maintenance Act and Section 25 of the Hindu Marriage Act and Section 125 of the Code of Criminal Procedure.

(a). Under Section 18 of the Hindu Adoption arid Maintenance Act and Section 125 of the Code of Criminal Procedure only wife can claim maintenance, while under Section 25 of the Hindu Marriage Act either spouse can do so.
(b). Under Section 18 of the Hindu Adoption and Maintenance Act and Section 125 of the Code of Criminal Procedure, a wife can claim maintenance and live separately from her husband while her marriage subsists. Under Section 25 of the Hindu Marriage Act, either spouse can claim maintenance and permanent alimony but that can be done only after judicial separation or after divorce.

When the marriage is subsisting there is no question of applicability of Section 25, Hindu Marriage Act but Section 18, Hindu Adoption and Maintenance Act. The word “wife” does not have the same meaning in the two enactments. The Court cannot grant the relief of maintenance in proceeding under one enactment in proceedings under the other (Ramesh Chandru Daga Versus Rameshwari Daga AIR 2005 SC 422)

(c). Hindu wife contemplated under Section 18 of the Hindu Adoption and Maintenance Act and Section 125 of the Code of Criminal Procedure includes only the wife of a valid marriage. While under Section 25 of the Hindu Marriage Act even a wife of void marriage can claim maintenance.

(d). Apparently Section 18 of the Hindu Adoption and Maintenance Act seems to have overridden Section 25, Hindu Marriage Act because in both the sections a similar provision exists and by virtue of Section 4, Hindu Adoption and Maintenance Act, it is the Act of 1956 (i.e. HMA) which shall prevail and the provisions of the Act of 1955 (i.e. HMA) vis-a-vis maintenance of a wife shall cease to have any effect.

Apparently it seems so: but there is no inconsistency between
two sections as both do not deal with a similar provision (as noted in the aforesaid differences). Both sections provide for separate and independent reliefs. The Court’s jurisdiction can’t be ousted on the plea that the applicant for maintenance under the Hindu Marriage Act is already getting maintenance under the Hindu Adoption and Maintenance Act though in fixing the quantum of maintenance that may be taken into consideration. (e) The provisions of maintenance in the Code of Criminal Procedure and the Hindu Adoption and Maintenance Act are again independent relief.

Multiple Proceedings for Maintenance:

In this regard the relevant judgments of Apex Court and various High Courts are discussed hereinafter.

Sudeep Chaudhary Vs Radha Chaudhary decided on 31.01.1997, AIR 1999 SC 536, 1999 CLL.’. 466, JT 1998 (9) SC 473.

It was held by Hon’ble Apex Court that the jurisdiction for granting maintenance under Section 125 of the Code of Criminal Procedure and Domestic Violence Act is parallel jurisdiction and if maintenance has been granted under Section 125 of the Code of Criminal Procedure after taking into account the entire material placed before the Court and recording evidence, it is not necessary that another Magistrate under Domestic violence Act should again adjudicate the issue of maintenance.

The law does not warrant that two parallel courts should adjudicate same issue separately. If adjudication has already been done by a Court of Magistrate under Section 125 of the Code of Criminal Procedure, re-adjudication of the issue of maintenance cannot be done by a Court of Magistrate under Domestic violence Act.

Smt. Premila Vs Shri Dharam Singh on 28 September 2011, P& H it was observed that:-
“Facts relevant for the decision of present revision petition are that during pendency of the petition under Section 13 of the Act filed by respondent-husband, petitioner-wife filed an application under Section 24 of the Act for interim maintenance and litigation expenses. The application was contested by respondent-husband on the plea that petitioner-wife has already been granted maintenance by the concerned Court in proceedings under Section 125 of the Code of Criminal Procedure and hence, it was held that petitioner-wife was not entitled to claim maintenance in the present proceedings”

Moreover law is well settled that the maintenance can be awarded under Section 125 of the Code of Criminal Procedure as well as under Section 24 of the Act, which are independent provisions and, however, from the maintenance awarded under Section 125 of the Code of Criminal Procedure can be adjusted.

It must be understood that the Protection of Women from Domestic violence Act, 2005 does not create any additional right to claim Maintenance on the part of the aggrieved person. It only puts the enforcement of existing right of maintenance available to an aggrieved person on fast track. If a woman living separate from her husband had already filed a suit claiming maintenance and after adjudication maintenance has been determined by a competent court either in Civil suit or by Court of Magistrate in an application under Section 125 of the Code of Criminal Procedure she does not have a right to claim additional maintenance under the Act. The Court of Magistrate under the Act has power to grant maintenance and monetary reliefs on an interim basis in a fast track manner only in those cases where woman has not exercised her right of claiming maintenance either under it Court or under Section 125 of the Code of Criminal procedure. If the woman has already moved Court and her right of maintenance hay been adjudicated by a competent Civil Court or by a competent court of Magistrate under Section 125 of the Code of Criminal procedure for any enhancement of maintenance already granted, she will have to move the same Court and she cannot approach Magistrate under the Protection of Women from Domestic Violence Act by way of an application of interim or final nature to grant additional maintenance.

Quantum of Maintenance:

The following are the documents relevant for the Court to decide application for maintenance:
(a) Income Tax returns
(b) Form 16 and Form 12BA
(c) Appointment letter
(d) Cost to company certificate
(e) Salary certificate
(f) Bank statement of all the bank accounts
(g) Credit/debit card statements
(h) Title deeds in respect of immovable property
(i) Registration certificate of vehicle

Burden of proving the income:

The monthly income of the husband may not very often be within the knowledge of the wife, particularly in a case where their relationship is considerably strained and the spouses are living separate for a considerable period.

The assets, liabilities, income and expenditure of the parties are necessary to be determined not only to fix the maintenance under Section 24, but also to determine the permanent alimony under Section 25 of the Hindu Marriage Act and right to the joint properties under Section 27 of the Hindu Marriage Act. it is, therefore, necessary to formulate a format of the affidavit of assets, income and expenditure and also specify the documents to be disclosed by them.

The Court has discretion in the matter as to from which date maintenance under Section 24 of the Act should be granted. The discretion of the Court would depend upon multiple circumstance which are to be kept in view. These could be the time taken to serve the respondent in the petition; the date of filing of the application under Section 24 of the Act; conduct of the parties in the proceedings, averments made in the application and the reply.

Now to have a look upon the relevant factors to adjudicate the quantum:

Law under Section 24 of the Hindu Marriage Act is well settled. The following are the factor, which can be taken into account while awarding interim maintenance
(a) Status of the parties
(b) Reasonable wants of the claimant
(c) Number of the persons to be maintained by the husband
(d) Liabilities, if any, of the husband
(e) The amount required by the wile to live a similar life style as she enjoined in the matrimonial home keeping in view food, clothing, shelter, educational and medical needs of the wife and the children, if any, residing with the wife and payment capacity of the husband.

Rights of Inheritance of Muslim Woman – Muslim Personal Laws in India

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The Muslim Law of Succession is a combination of four sources i.e. the Holy Quran, Sunna (practice of prophet), Ijma, (Consensus of the learned men of the community over the decision over a particular subject matter), Qiya (deductions based on analogy on what is right and just in accordance with good principles). Muslim law recognises two types of heirs, firstly, sharers, the ones who are entitled to certain share in the deceased’s property and secondly, Residuaries, the ones who would take up the share in the property that is left over after the sharers have taken their part.

It is noteworthy that the Muslim law does not make any strict distinction between any two or more type of properties such as movable and immovable, corporeal and incorporeal etc. Since there is no such distinction between different kinds of properties, therefore, on the event of death of a person, every such property which was within the ambit of ownership of the deceased person shall become a subject matter of inheritance. The amount of property that shall become the subject matter of inheritance and is made available to the legal heirs to inherit shall be determined after making certain appropriations. Such appropriations may include expenses paid in lieu of funeral, debts, legacies, wills etc. After making all these payments, the left over property shall be termed as the inheritable property.

Every religion practiced in India is governed by its respective personal laws – which includes property rights as well. However, Muslims in the country do not have codified property rights and are broadly governed by either of the two schools of the Muslim personal law – the Hanafi and the Shia. While the Hanafi school recognises only those relatives as heirs whose relation to the deceased is through a male. This includes son’sdaughter, son’s son and father’s mother. The Shia school, on the other hand, favours no such discrimination. This means that heirs, who are related to the deceased through a female are also accepted.

Under the Indian legislative scheme, the rules that govern inheritance under the Muslim law depend on the kind of property involved. In cases of Non testamentary succcession, the Muslim Personal Law (Shariat) Application Act, 1937 gets applied. On the other hand, in case of a person who dies testate i.e. one who has created his will before death, the inheritance is governed under the relevant Muslim Shariat Law as applicable to the Shias and the Sunnis. In cases where the subject matter of property is an immovable property which is situated in the state of West Bengal or comes within the jurisdiction of Madras or Bombay High Court, the Muslims shall be bound by the Indian Succession Act, 1925. This exception is only for the purposes of testamentary succession.

 

The wasiyat (will) under Islamic law

  • A Muslim cannot give away more than one third of his/her total property through a will. In circumstances where there are no heirs in the estate as prescribed by the law, the wife may inherit a greater amount by will. 

Therefore, Succession of 2/3rd part of the assets will be governed under the Muslim Law of Inheritance

Rules of inheritance

  1. A son gets double the share of the daughter wherever they inherit together.
  2. The wife gets one-eighth of the share if there are children and one-fourth of the share if there are no children. In case the husband has more than one wife, the one-eighth share will be divided equally among all wives. The husband gets one fourth of the share of his dead wife’s property,If there are children and one-half if there are no children .
  3. If the parent has more than one daughter, only two-third of the property shall be divided equally among daughters. If the parent has only one daughter, half of the parent’s property is inherited by her.
  4. The mother gets one-sixth of her dead child’s property if there are grandchildren, and one-third of the property if there are no grandchildren.
  5. Parents, children, husband and wife must, in all cases, get shares, whatever may be the number or degree of the other heirs.
  6. Slavery, homicide, difference of religion and difference of allegiance, exclude from inheritance.

Property rights of a daughter in Islam

  • Thus, under the Muslim law, the rules of inheritance are rather strict. A son takes double the share of a daughter, on the other hand, the daughter is the absolute owner of whatever property she inherits. If there is no brother, she gets half a share. It is legally hers to manage, control, and to dispose it off as and when she wants.
  • She is also eligible to receive gifts from those she would inherit from. This is contradictory because she can inherit only one-third of the man’s share but can get gifts without any hassle. 
  • Till a daughter is not married, she enjoys the right to stay in her parents’ house and seek maintenance. In case of a divorce, charge for maintenance reverts to her parental family after the iddat period (approximately three months) is over. However, if her children are in a position to support her, the responsibility falls on them.

Principles governing rules of inheritance of joint or ancestral property

  • Unlike Hindu law, there is no provision of distinction between individual i.e. self acquired or ancestral property. Each and every property that remains within the ownership of an individual can be inherited by his successors. Whenever a Muslim dies, all his property whether acquired by him during his lifetime or inherited from his ancestors can be inherited by his legal heirs. Subsequently, on the death of every such legal heir, his inherited property plus the property acquired by him during his lifetime shall be transferred to his heirs.

Birth right

  • The principle of Hindu law of inheritance of Janmaswatvad does not find place in the Muslim law of inheritance. The question of inheritance of property in Muslim law comes only after the death of a person. Any child born into a Muslim family does not get his right to property on his birth. In fact no such person holds becomes a legal heir and therefore holds no right till the time of death of the ancestor. If an heir lives even after the death of the ancestor, he becomes a legal heir and is therefore entitled to a share in property. However, if the apparent heir does not survive his ancestor, then no such right of inheritance or share in the property shall exist.

Inheritance on the basis of Doctrine of Representation

  • Doctrine of representation states that if during the lifetime of an ancestor, any of his or her legal heirs die, but the latter’s heirs still survive, then such heirs shall become entitled to a share in the property as now they shall be representing their immediate generation. Doctrine of Representation finds its recognition in the Roman, English and Hindu laws of inheritance. However, this doctrine of representation does not find its place in the Muslim law of inheritance. For example, A has two sons B and C. B has 2 children i.e. D and E and C also has two children F and G. During the life time of A if B dies, then on the event of death of A only C shall be entitled to inherit A’s property. B’s children D and E shall not be entitled to any share in A’s property. Between C and B’s children D and E, C would totally exclude D and E from inheriting the property. Therefore, it is said that the nearer heir excludes the remote heir from inheritance.  The Muslim jurists justify the reason for denying the right of representation on the ground that a person has not even an inchoate right to the property of his ancestor until the death of that ancestor.[1] It is further argued that a right which was not vested in any possibility cannot give rise to claim through a deceased person.

Manner of Distribution

  • Under the Muslim law, distribution of property can be made in two ways, firstly per capita or per strip distribution. Per – Capita distribution method is majorly used in the Sunni law. According to this method, the estate left over by the ancestors gets equally distributed among the heirs. Therefore, the share of each person depends on the number of heirs. The heir does not represent the branch from which he inherits.
  • On the other hand, per strip distribution method is recognised in the Shia law. According to this method of property inheritance, the property gets distributed among the heirs according to the strip they belong to. Hence the quantum of their inheritance also depends upon the branch and the number of persons that belong to the branch. For example, if A has two sons i.e. B and C. B has two children i.e. D and E. C has three children F, G and H. Suppose on the death of A his property’s worth is estimated to be about 12000. B and C would be entitled to an equal share of 6000 each. . In case if B and C both die, then the extent of their children’s share shall be in following manner.  B’s children D and E can only inherit the property to the extent of B’s share. Their share shall be 3000 each. As far as the children of C are concerned the extent of property that they can inherit shall extend to 6000. Their respective shares shall be equal i.e. 2000 each. Hence, it can be said that the share of each person in this method of distribution varies.
  • It is noteworthy that the Shia law recognises the principle of representation for a limited purpose of calculating the extent of share of each person. Moreover, under the Shia law this rule is applicable for determining the quantum of share of the descendants of a pre-deceased daughter, pre-deceased brother, pre-deceased sister or that of a pre-deceased aunt.

Right of Females in inheritance of property

  • Muslim does not create any distinction between the rights of men and women. On the death of their ancestor, nothing can prevent both girl and boy child to become the legal heirs of inheritable property. Preferential rights do not exist. However, it is generally found that the quantum of share of female heir is half of that of the male heirs. The justification available to this distinction under Muslim law is that the female shall upon marriage receive mehr and maintenance from her husband whereas males will have only the property of the ancestors for inheritance. Also, males have the duty of maintaining their wife and children.

Rights of inheritance of a child in womb

  • Under Muslim Law, a child in the womb shall only be entitled to the share in property if he or she is born alive. In case if he is born dead then the share vested in him shall cease to exist and it shall be presumed that it never existed.

Rights of a childless widow and widow

  • Under the Shia law, a Muslim widow who does not have any children shall be entitled to inherit one – fourth share of the movable property belonging to her deceased husband. However, a widow with children or childless widow is entitled to one – eighth of the deceased husband’s property. In cases where a Muslim man gets married during a period when he is suffering from some mental illness and dies without consummating the marriage, the widow shall not be entitled to any right over her dead husband’s property.

Rights of the step children

  • The rights of the step children do not extend to inherit the property of their step – parents. However, the step brother can inherit property from their step sister or brother.

Escheat

  • In cases where a person dies without any heir then, the property of such a person shall go to the government. The state is considered as the ultimate heir of every deceased.

The need to re-examine to the Muslim personal law

  • In a recent development, a public interest litigation has been filed asking for an amendment in the Muslim personal law on inheritance, alleging that Muslim women are being discriminated on the issues relating to sharing of property in comparison to their male counterparts.
  • The petition claimed that a bare perusal of the law shows that a wife should receive 1/8th of the property of her husband on his death if they have children. In case there are no children borne out of marriage, she is entitled to 1/4th of the property. A daughter will receive half of the share of a son. In stark contrast, the men receive 1/4th of the property of his wife on her death if they have children. In case there are no children borne out of the marriage, he is entitled to half the property. A son receives double the share of the daughter, the plea alleged.
  • The petition further states that the discrimination based on customary law as well as the statutory law violated Muslim women’s fundamental right to equality enshrined under Articles 14, 19, 21 and other relevant provisions of the Constitution. The plea contended that Article 13 of the Constitution included personal laws, including Muslim personal laws.
  • The Delhi High Court has now sought the Centre’s response on the PIL filed by advocate Raghav Awasthi.

PART 1 – THE CLAIMS TRIBUNAL AGREED PROCEDURE

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PART 1- SCOPE AND DEFINITIONS

  1. Scope: This procedure shall be applicable for all claims filed before the Claims Tribunals in the NCT of Delhi.
  2. Definitions. –

    (1) In this procedure, unless the context otherwise requires,

    1. “Act” means the Motor Vehicles Act,1988 ( 59 of 1988);
    2. “accident” means an accident involving use of motor vehicle at a public place;
    3. “Claims Tribunal” means a Motor Accidents Claims Tribunal constituted under section 165 of the Act;
    4. “Clause” shall refer to the Clauses of this Agreed procedure;
    5. “Form” means a form appended to The Delhi Motor Accident Claims Tribunal Rules, 2008;
      1. “insurance company” means the insurance company with which a motor vehicle involved in an accident was insured on the date of the accident;
      2. “investigating police officer” means the station house officer of a police station within whose jurisdiction an accident involving a motor vehicle occurs, and includes any police officer subordinate to him entrusted with the investigation of the case;
      3. “legal representative” shall have the same meaning assigned to it under clause (11) of section 2 of the Code of Civil Procedure, 1908 (5 of 1908).
      4. “Rule” or “2008 Rules” shall bear reference to The Delhi Motor Accident Claims Tribunal Rules, 2008.

      (2) All other words and expressions used herein but not defined and defined in Motor Vehicles Act, 1988 or The Delhi Motor Accident Claims Tribunal Rules, 2008, shall have the meanings respectively assigned to them in that Act, or the Rules as the case may be.

Motor Accident Claims : Important Judgments

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Award of Compensation shall be reasonable and just

Case name: K.Suresh v. New India Assurance Company Limited and Another, [(2012) 12 SCC 274]

In this case, the Supreme Court observed:

  • That while assessing the quantum of compensation some guess work, some hypothetical considerations and some sympathy come into play but, a significant one, the ultimate determination is to be viewed with some objective standards.
  • That neither the Tribunal nor a court can take a flight in fancy and award an exorbitant sum. In conceptual eventuality “just compensation” plays a dominant role.
  • That an adjudicating authority, while determining the quantum of compensation, has to keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned.

Compensation under the head disability to earn livelihood in future distinct from compensation under the head suffering and loss of enjoyment of life

Case name: Ramesh Chandra v. Randhir singh and others [(1990) 3 SCC 723]

In this case, the Supreme Court, while considering the disability to earn livelihood in future, held that the amounts under that head can be awarded notwithstanding the grant of compensation under the head pain and suffering and loss of enjoyment of life. The Apex Court opined that:

  • That the sum awarded for pain, suffering and loss of enjoyment of life etc. termed as general damages should be taken to be covered by damages granted for loss of earnings is concerned that too is misplaced and without any basis.
  • The pain and suffering and loss of enjoyment of life which is a resultant and permanent fact occasioned by the nature of injuries received by the claimant and the ordeal he had to undergo.
  • Money solace is the answer discovered by the Law of Torts. No substitute has yet been found to replace the element of money. This, on the face of it appeals to us as a distinct head, quite apart from the inability to earn livelihood on the basis of incapacity or disability which is quite different.
  • The incapacity or disability to earn a livelihood would have to be viewed not only in praesenti but in futuro on reasonable expectancies and taking into account deprival of earnings of a conceivable period. This head being totally different cannot in our view overlap the grant of compensation under the head of pain, suffering and loss of enjoyment of life.
  • One head relates to the impairment of person’s capacity to earn, the other relates to the pain and suffering and loss of enjoyment of life by the person himself.

Compensation for permanent disability cannot exclude compensation under other heads

Case name: B. Kothandapani v. Tamil Nadu State Transport Corporation Limited [(2011) 6 SCC 420]

The Supreme Court made the following observations in the case:

  • That the compensation for loss of earning power/capacity has to be determined based on various aspects including permanent injury/disability. At the same time, it cannot be construed that compensation cannot be granted for permanent disability of any nature.
  • It cannot be disputed that apart from the fact that the permanent disability affects the earning capacity of the person concerned, undoubtedly, one has to forego other personal comforts and even for normal avocation they have to depend on others.

Courts to adequately compensate the victim for not only physical injury but also for leading a normal life

Case name: Kavitha v. Deepak and Others [(2012) 8 SCC 604]

In this case, the Supreme Court stated that:

  • The Courts while determining the quantum of compensation, either for permanently or temporarily disabled persons, must make effort to adequately compensate them not merely for physical injury and treatment but also for loss of earning, inability to lead a normal life and to enjoy life’s amenities.
  • That in determining the quantum of compensation payable to the victims of accident, who are disabled either permanently or temporarily, efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the loss of earning and inability to lead a normal life and enjoy amenities, which would have been enjoyed but for the disability caused due to the accident.
  • The amount awarded under the head of loss of earning capacity are distinct and do not overlap with the amount awarded for pain, suffering and loss of enjoyment of life or the amount awarded for medical expenses.

Compensation can be granted towards permanent-disability as well as loss of future earnings

Case name: Subulaxmi v. Managing Director, Tamil Nadu State Transport Corporation and Another [(2012) 10 SCC 177]

In this case, the seminal issue that cropped up before the Apex Court was whether the High Court was justified in awarding compensation on a singular head relating to permanent disability and loss of future earning?

In the aforesaid context, the Apex Court made the following observations:

  • The Court in the case held that compensation can be granted towards permanent-disability as well as loss of future earnings, for one head relates to the impairment of person’s capacity and the other relates to the sphere of pain and suffering and loss of enjoyment of life by the person himself.
  • If the victim of an accident suffers permanent or temporary disability, then efforts should always be made to award adequate compensation not only for the physical injury and treatment, but also for the pain, suffering and trauma caused due to the accident, loss of earning and the victim’s inability to lead a normal life and enjoy amenities, which he would have enjoyed but for the disability caused due to the accident.

Fair Compensation to be awarded for non-pecuniary losses

Case name: Jai Bhagwan v. Laxman Singh and Others [(1994) 5 SCC 5]

In this case, the Supreme Court made reference to In Clerk and Lindsell on Torts (16th Edn.), wherein while referring to damages for personal injuries, it was stated that

“In all but a few exceptional cases the victim of personal injury suffers two distinct kinds of damage which may be classed respectively as pecuniary and non-pecuniary. Bu pecuniary damage is meant that which is susceptible of direct translation into money terms and includes such matters as loss of earnings, actual and prospective, and out-of-pocket expenses, while non-pecuniary damage includes such immeasurable elements as pain and suffering and loss of amenity or enjoyment of life. In respect of the former, it is submitted, the court should and usually does seek to achieve restitutio in integrum in the sense described above, while for the latter it seeks to award ‘fair compensation’. This distinction between pecuniary and non-pecuniary between ‘special’ and ‘general’ damages, for while the former is necessarily concerned solely with pecuniary losses – notably accrued loss of earnings and out-of-pocket expenses – the latter comprises not only non-pecuniary losses but also prospective loss of earnings and other future pecuniary damage.”

  • In view of the aforesaid, the Court reiterated that non-pecuniary losses are different from pecuniary losses in that the restitutio in integrum objective cannot be applied liberally to them – damages cannot restore a lost limb or happiness.
  • That the practice of the courts is not to subdivide non-pecuniary damages under specific heads, nevertheless proper consideration cannot be given to the plaintiff’s claim without taking into account the various types of loss he has s

Compensation in case where Victim is a Child

Case name: Master Mallikarjun v. Divisional Manager, The National Insurance Company Limited & Anr. [2013 (3) KLJ 815]

In this case, the Supreme Court considered the issue of fair compensation to be awarded to a child, who suffered a disability in a motor accident.

The Apex Court in the case declared that the minimum compensation in such cases should be Rs.3,00,000/, if the child suffers whole-body disability between 10% to 30%, Rs.4,00,000/- for disability up to 60%, Rs.5,00,000/- for disability up to 90% and Rs.6,00,000/-, if the disability is above 90%.

However, in the case, the Supreme Court did not fix the aforesaid parameters as an inviolable standard and declared that in exceptional circumstances, the Tribunals and courts would be empowered to grant more as per the factual requirements to be assessed from case to case.

  • Other observation made by the Court in the case was that the main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability.
  • That appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc.

Case name: Kumari Kiran through Her Father Harinarayan v. Sajjan Singh and Others [(2015) 1 SCC 539]

In this case, the Apex Court took note of the agony of the parents wherein in the disability is suffered by a minor child.

The Court while determining fair compensation the agony of the parent should also be one of the factors, since their sorrow will continue for the whole life seeing their child in a vegetative state on account of the negligence of the hospital authorities.

Compensation on the grounds of Sympathy

Case name: Nizam’s Institute of Medical Sciences v. Prasanth S. Dhananka and Ors[(2009) 6 SCC 1]

The Supreme Court in the case opined that while determining quantum of compensation in such cases the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable.

That Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, and the court must not be chary of awarding adequate compensation.

That the “adequate compensation” that we speak of must to some extent, be a rule of thumb measure, and as a balance has to be a struck, it would be difficult to satisfy all the parties concerned.

Child was not Earning Money doesn’t Disentitle Parents from Claiming Full Benefits u/Fatal Accidents Act

Case name: R. Ayyavu and Anr. v. Gopinathan Nair and Anr. (AIR 1991 ACJ 718)

In the case, the Supreme Court held:

  • That the mere fact that the children were not earning any money or money’s worth would not disentitle their parents from claiming the full benefits under the Fatal Accidents Act.
  • That in the absence of statutory guidelines, the court has to make an estimate of the pecuniary loss suffered by the members of the family of the deceased. Greater value is attributed to life while the purchasing power of the Rupee has considerably diminished.
  • That sentiments indeed have no place, but the court has to evaluate the pecuniary loss resulting from death on the basis of a proper appreciation of the relevant circumstances and hard realities.
  • In doing so, the court has to take into account all reasonable probabilities of future benefits, but exclude, from its consideration all fancied or bare possibilities or speculative conjectures.
  • Thus, damages are to be based on the reasonable expectation of pecuniary benefit and on other non-pecuniary benefit.

Owner as per RTO records liable for accident, if transfer is not recorded

In  Naveen Kumar vs Vijay Kumar and others,

  • the SC reiterated the legal position that it is the registered owner of the vehicle as per RTO records who is liable for accident caused by the vehicle. Therefore, even if the ownership of vehicle is transferred, if the transfer is not recorded in the RTO records, the original owner will continue to be liable.
  • Because, owner, as per Section 2(30) of the MV Act, is the registered owner. “The principle underlying the provisions of Section 2(30) is that the victim of a motor accident or, in the case of a death, the legal heirs of the deceased victim should not be left in a state of uncertainty. A claimant for compensation ought not to be burdened with following a trail of successive transfers, which are not registered with the registering authority”, observed the SC.

Insurer will be absolved if transport vehicle had no permit

  • The SC held that if a transport vehicle plying without permit gets involved in an accident, the insurer will not be liable, as absence of permit is a statutory breach( Amrit Paul Singh and anothers v TATA AIG General Insurance)

Stationary vehicle can also cause accident

  • To incur liability under MV Act, it is not necessary that the vehicle was moving. As per Section 165 of the Act, to give rise to a claim for compensation, the accident need to “arise out of the use of the vehicle”. “The word “use” has a wider connotation to cover the period when the vehicle is not moving and is stationary”, observed the Supreme Court, while sustaining the claim in relation to accident caused by a stationary tractor.
  • In this case, the battery of the tractor was used to power a blasting machine in a field. During the blasting operation, a rock fell on a passer by, causing his death. The SC held that the accident had causal link with “use of vehicle”, and held the MACT claim to be maintainable.(Kalim Khan and others v Fimidabee and others)

Term of third party insurance raised as 3 years for four wheelers and 5 years for two wheelers for vehicles sold from Sep 1

  • On July 20, the Supreme Court ordered that third party insurance coverage of three years for cars and five years for two wheelers should be mandatory for all vehicles sold from September 1.
  • The direction was on the basis of decisions taken by the Supreme Court Committee on Road Safety, headed by former SC judge Justice K. S Radhakrishnan. The bench noted that in a meeting held by Committee on 26th March, 2018, it was recorded that there are about 18 crore vehicles plying on the road and only about 6 crore vehicles have the mandatory third party cover, which meant that 66% of the vehicles were plying without third party insurance (S Rajaseekaran v Union of India and others)

On August 28, IRDA issued a circular, putting in effect the SC direction.

Doctrine of “pay and recover” holds the field in cases of breach of policy conditions

  • The SC held that in cases of breach of statutory conditions of policy, the insurer will have to first pay compensation to the claimant and can recover the amount later from the insured owner. The insurer cannot seek absolute exoneration.
  • The SC set aside the HC judgment, which had quashed the Tribunal direction to the insurer to “pay and recover” in a case where the driver of the offending vehicle was found to have no driving license.  The HC completely exonerated the insurer ,relying on the SC decision in National Insurance Co Ltd v Parvathneni. In Parvathneni, the SC had referred to larger bench the issue whether directions to “pay and recover” could be given under Article 142 of the Constitution, in cases where insurer had no liability.
  • In the present case, the SC held that the questions raised in Parvathneniwas no attracted. Because, this was a case of breach of policy condition, and not a case where policy did not cover the accident.(Shamana and another vs The Divisional Manager Oriental Insurance)

Disabled victim must be compensated for inability to lead full life

  • In a case relating to compensation claim for disability caused by accident, the SC held : “In cases of motor accidents leading to injuries and disablements, it is a well settled principle that a person must not only be compensated for his physical injury, but also for the non­pecuniary losses which he has suffered due to the injury. The Claimant is entitled to be compensated for his inability to lead a full life, and enjoy those things and amenities which he would have enjoyed, but for the injuries”
  • In this case, the SC accepted the statement given by the employer regarding the salary paid to the victim. The HC was criticised for taking a lower amount than the figure stated by the employer(Anant Son of Sidheshwar Dhukre v Pratap Son of Zhamnappa Lamzane and another)

Claim petition not maintainable for self-accident

  • The Supreme Court reiterated that when an owner-cum-driver of a vehicle is himself responsible for the accident caused, in which no other vehicle is involved; no claim petition will be maintainable under Motor Vehicles Act(National Insurance Co. Ltd. vs. Ashalata Bhowmik)

Parents entitled to compensation for “loss of filial consortium” for death of children in accident

  • The Supreme Court held that in a case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to compensation for loss of consortium under the head of filial consortium.
  • “An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.”, observed the bench.
  • The bench further said the amount of compensation to be awarded as consortium would be governed by the principles of awarding compensation under ‘Loss of Consortium’ as laid down by the constitution bench in Pranay Sethcase. ( Magma General Insurance Co Ltd vs Nanu Ram Alias Churhu Ram and others)

HC should assign reasons for reducing compensation or for not enhancing it

  • The Supreme Court reiterated that the High court while sitting in appeal above a MACT order, should assign the reasons for not granting enhancement of compensation and/or its reduction(Sudarsan Puhan vs. Jayanta Ku. Mohanty).

Procedural lapses should not result in denial of compensation

  • Motor Vehicles Act is a beneficial legislation, and procedural lapses in conduct of case should not result in denial of compensation. “The Act is designed in a manner, which relieves the victims from ensuring strict compliance provided in law, which are otherwise applicable to the suits and other proceedings while prosecuting the claim petition filed under the Act for claiming compensation for the loss sustained by them in the accident”, observed the Court (Vimla Devi v National Insurance Co Ltd and others).

Compensation can be awarded in excess of the claim.

  • It was held by SC that there was no restriction to award compensation exceeding the amount claimed by the claimants, as the “function of the Tribunal or Court under Section 168 of the Motor Vehicles Act, 1988 is to award “just compensation” (Ramla v National Insurance Co Ltd and others)

Salary certificate not the only basis for computing income

  • The Supreme Court in United India Insurance Co Ltd v Indiro Devi has held that salary certificate need not be the only basis to assess income of the deceased for arriving at a just and fair compensation to be paid to the claimants for the loss of life.
  • The SC upheld a Punjab and Haryana High Court judgment that had taken the income of the deceased as found in the income tax assessment and increased the compensation awarded by the tribunal.

Vehicle owner as per RTO records liable even if accident occurred within the prescribed 30 days for reporting transfer

  • The Supreme Court held that, if an accident occurs within the period prescribed for reporting transfer of a vehicle, the transferor is not absolved of the liability, so long as his name continues in RTO records. ““These timelines and obligations are only to facilitate the reporting of the transfer. It is not as if that if an accident occurs within the period prescribed for reporting said transfer, the transferor is absolved of the liability.”, the court observed (Prakash Chand Daga v Saveta Sharma and others)

High Court Decisions

Academic qualifications not the only criteria to determine future prospects, Tripura HC

  • While upholding compensation awarded by the Motor Accident Claims Tribunal (MACT) to a student who suffered accident, the Tripura High Court has observed that academic qualification cannot be the sole criteria to determine the merits of a person and there should not be any discrimination in determining the loss of earning capacity on account of disability occurred due to road traffic accident, particularly, when claimant-victims are students.
  • ‘In our country, there are so many instances that a person with less academic career has become a successful industrialist and even participated in generating the economic growth of the nation”, observed the HC ( New India Assurance Co Ltd v Sri Bapi Debbarma and others)

Absence of fitness certificate is a fundamental breach of policy, Kerala HC 5 Judges’ Bench

  • A Full Bench of the High Court of Kerala comprising five judges has held that absence of fitness certificate for a transport vehicle amounts to fundamental breach of third party insurance policy. It was held that the insurer will get ‘pay and recover’ option in compensation cases arising out of accidents caused by transport vehicles without fitness certificate.
  • The five judges’ bench was constituted to consider the correctness of decision of a three judges’ bench in Augustine vs Ayyappankutty 2015(2) KLT 139, which held that lack of fitness certificate was only a technical breach and that insurer cannot seek exoneration from liability on that ground.
  • Certificate of Registration, existence of valid Permit and availability of Fitness Certificate, all throughout, are closely interlinked in case of a transport vehicle and one requirement cannot be segregated from another”, the Full Bench held overruling three judges’ bench decision in Augustine vs. Ayyappankutty  Pareed Pillai v Oriental Insurance Co Ltd )

The burden is on insurer to prove that it had intimated the insured about cancellation of policy, Kerala HC 3 Judges’ bench

  • The Full Bench of the High Court of Kerala clarified that once the insurer shows that it has intimated the cancellation of insurance policy to the insured through post addressed to him, then the burden to show that the intimation was not received shifts to the insured. The Court was considering third party insurance policy under the Motor Vehicles Act.

Sec.24 CPC cannot be invoked to transfer MACT claims, Allahabad HC

  • The Allahabad High Court held that Section 24 of the Code of Civil Procedure cannot be invoked to seek transfer of claim petition pending before the Motor Accident Claims Tribunal.
  • ‘Since a Claims Tribunal is created by a notification of the State Government under the provisions of the Motor Vehicles Act, it cannot be said that such Tribunal is a Court subordinate to the High Court’, reasoned the Court.

Insurance company not liable for injury to unauthorized passengers, Madras HC

  • The Madras High Court  reiterated that insurance companies cannot be held liable to compensate for deaths or injuries to unauthorised/ gratuitous passengers in goods or transport vehicles.